Calling a Colleague a "Fat Ginger Pikey" at Work Was Not Harassment
At least it wasn't on the facts in Evans v Xactly Corporation Limited.
Evans v Xactly
The Claimant was employed by Xactly as a Sales Representative for just under a year when he was dismissed for poor performance. Following his dismissal the Claimant brought a series of Employment Tribunal claims, including one for harassment.
The Claimant stated that he had been called a number of derogatory names by colleagues, including the term “fat ginger pikey”. The Claimant argued that this constituted harassment related to a disability as he was sensitive about his weight (which he attributed to his type 1 diabetes and an under-active thyroid) and/or race as he had links with the travelling community.
The Employment Tribunal Decision
In reaching a decision the Employment Tribunal (ET) analysed the office culture, the context of the allegations and the nature of the relationships between the Claimant and those who had made the comments.
The ET heard that there was a culture of 'banter' in the office, that Mr Evans had not complained at the time the comments were made and that he had participated by making derogatory comments to colleagues. Other colleagues did not approve of the language used in the office but did not find it unacceptable in context and no one had noticed the Claimant being upset.
In addition, the Claimant was unable to show a link between the comment and his medical conditions and only one of his colleagues was aware of his links to the travelling community.
The ET accepted that the “fat ginger pikey” comment was derogatory, demeaning, unpleasant and potentially discriminatory and harassing. However, the Tribunal explained that the context in which the comments were made was key and it concluded that the test for harassment had not been satisfied because:
- the comments were not unwanted as the Claimant was an active participant in the culture of 'banter';
- they did not have the purpose or effect of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him as he was not offended; and
- it would not have been reasonable for him to have considered his dignity was violated or that the environment was intimidating, hostile, degrading, humiliating or offensive given the particular circumstances, the context and material facts relevant to the claim.
The Employment Appeal Tribunal Decision
The EAT held that the ET was entitled to find that there has been no harassment and had quite rightly analysed the culture of the work environment and the context in which the comments were made.
The EAT commented that many may be surprised that such comments did not amount to harassment but concluded that the ET had considered the facts extremely carefully and had come to a decision it was unarguably entitled to reach.
Best Practice
This case provides a useful reminder that the context in which alleged acts of harassment take place is key. However, employers should be wary of relying on a particular and apparently accepted office culture as justification for potentially discriminatory or harassing comments. Such an approach could give rise to claims from those in the workplace who are not active participants in 'banter' and who feel that they have been harassed at work as a result of the environment created by others. Employers would be better served by actively managing the behaviour of staff who do not act in a professional manner in the workplace.